Order Michigan Supreme Court
Lansing, Michigan
July 22, 2011 Robert P. Young, Jr.,
Chief Justice
142843 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 142843
COA: 302290
Lenawee CC: 09-014386-FH
DONALD GERALD JOHNSTON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the February 28, 2011
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARILYN KELLY, J. (dissenting).
I dissent from the order denying defendant’s application for leave to appeal
because I believe that offense variable (OV) 10 was improperly scored. As I stated in my
concurring statement in People v Brandt, 489 Mich 875, 876 (2011), OV 10 contemplates
a living human victim; an institutional victim cannot be a vulnerable victim as
contemplated by the definition of “vulnerability” in MCL 777.40(3)(c). Accordingly,
zero points should have been assessed for OV 10. Since the resulting change in
defendant’s total OV score would produce a lower recommended minimum sentence
range under the sentencing guidelines, I would vacate defendant’s sentence and remand
the case for resentencing with instructions to the trial judge to assess zero points for
OV 10. See People v Francisco, 474 Mich 82 (2006).
CAVANAGH, J., joins the statement of MARILYN KELLY, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 22, 2011 _________________________________________
p0719 Clerk